Amazing articles and reports on 3 of CAP’s biggest issues – Part 1: Wrongful Convictions

Some amazing articles and reports on three of CAP’s biggest issues: Wrongful Convictions (including Eyewitness ID), Compassionate Release, and Mandatory Minimums. These issues are heating up and validating the reforms for which we have been advocating. 

... and a call for your help in the 2014 legislative session! Your voice is crucial in helping legislators develop sensible, humane, and sound public policy.

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National Summit On Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions
from the International Association of Chiefs of Police/U.S. Department of Justice, Office of Justice Programs

“Injustice anywhere is a threat to justice everywhere.” Martin Luther King Jr., Letter from a Birmingham Jail, 1963


Making Rightful Arrests: Avoiding Errors
The over-arching theme of this working group was on critical thinking, promising investigative practices, and tools to ensure that errors are avoided when making arrest decisions:

Eyewitness Identifications
1.       Law enforcement agencies should conduct a full and thorough examination of their current eyewitness identification protocols and related training to ensure they are maintaining best practices, including warning the witness that the offender may or may not be in the photo array/lineup, double-blind administration, sequential lineups, avoiding confirmatory feedback, gathering a certainty statement, and documenting the process.

2.       DOJ and the IACP should support implementation and conduct field research with law enforcement agencies to implement and understand the benefits of double-blind sequential versus simultaneous photo array/ lineups, specifically piloting this model in selected local law enforcement agencies.

3.       Law enforcement agencies should assess current investigative protocols and related training, with an eye to improving both by leveraging current research and developing policy at the national level.

Note: Debate around best practices in eyewitness ID protocols has been present across the United States over the past decade. That debate continued at the summit. Thus while there was general consensus on the above recommendations, there was a simultaneous call for further research to confirm emerging findings on, the effectiveness and impact of double-blind/ sequential identification protocols.

False Confessions, Testimony, and Informants
4.       At a minimum, law enforcement agencies should record audio of all interviews involving major crimes. Video recordings of interviews are preferred.

5.       Investigators should gather corroborating evidence in cases of jailhouse testimony of informants. (See IACP Model Policy link in Resources.)

Preventing Investigative Bias
6.       Law enforcement agencies should conduct a supervisory review to assess whether investigative bias is, or was, adversely affecting a case.

7.       Law enforcement agencies should develop protocols to acknowledge, address, and limit investigative bias through appropriate policies and training.

8.       Law enforcement agencies should focus training on risk-based decision making and examining lessons learned from cases involving investigative bias. (See page 11 for detailed training suggestions.)

Improving DNA Testing Procedures
9.       All invested parties, including DOJ, the IACP, individual law enforcement agencies, and state and locaL governments, should engage and work together to improve the timeline of DNA testing and delivery of results and the reduction or elimination of testing backlogs.

10.     Law enforcement agencies need to ensure that all parties (including defense attorneys, prosecutors, and victims) are notified of DNA hits in a timely fashion at any stage of the investigation.

Combined DNA Index System (CODIS) and Other Resources
11.     Prosecutors and defense teams should have access to CODIS hit reports as appropriate.

12.     All invested parties, including DOJ, the IACP, individual law enforcement agencies, states, and local governments, should identify ways to enhance resources for smaller agencies to conduct major crime investigations.

Correcting Wrongful Arrests: Detecting and Correcting Errors
The focus of this working group was on actions that should be taken once a wrongful arrest has occurred and new information indicates that errors may have been made. Recommendations include:

13.      DOJ, the IACP, law enforcement agencies, and other invested parties should collaborate to create a wrongful arrest risk-assessment tool incorporating an investigative checklist or point system to guide both pre-arrest decisions and post-arrest re-evaluation.

14.      Law enforcement agencies should ensure supervisors conduct vigorous oversight and provide ongoing guidance to all active cases.

15.      Law enforcement agencies should work with prosecutors to identify the top five errors that typically lead to wrongful convictions and identify ways to reduce their occurrence.

16.      Law enforcement agencies need to establish accountability at every level so that major case investigations are the purview of the entire organization, with key players involved at appropriate times in a collaborative format.

17.      Law enforcement agencies need to consider and carefully craft language used when addressing the public and/or the media to communicate that a case is being reviewed or reconsidered.

18.      Law enforcement agency leadership should examine and redefine, where necessary, the macro-level approach to criminal investigations, creating a culture of critical thinking and openness to new information.

19.      DOJ, the IACP, and other invested parties should collaborate and consider how law enforcement agencies can create critical case review opportunities to increase transparency and decrease agency vulnerability to lawsuits.

20.       Law enforcement agencies and leaders should create or refine culture and climate to incentivize promising practice investigative procedures versus an exclusive focus on speedy actions and outcomes.

21.       Law enforcement agencies, when reviewing and revising their investigative policies and training should focus on the three Cs: cooperation, collaboration, and consolidation of capacities and resources to increase investigative effectiveness.

Leveraging Technology and Forensic Science: Maximizing Its Value
This working group focused exclusively on the capacity of technology and forensic science to enhance the quality of law enforcement criminal investigations and arrest decisions. Recommendations included:

22.       All invested parties, including law enforcement agencies, lab staff, district attorneys (DAs), and prosecutors should participate in interagency training on forensic issues, both locally and

23.      Law enforcement agencies should conduct a thorough evaluation of current protocols as they pertain to evidence collection, preservation and retention, and develop a concrete plan to improve such in the near term.

24.     All invested parties including law enforcement agencies, DAs and prosecutors, should adopt current best practice protocols for suspect identification procedures and for recording interviews.

25.     All invested parties should seek sustained support, including accreditation and certification, based on best practice protocols for crime labs.

26.     Law enforcement agencies should develop an ongoing plan to identify, assess, and invest in emerging technology that can enhance investigative quality and accuracy.

Re-Examining Closed Cases: Openness to New Information
This working group focused on how to enhance local law enforcement’s openness to, and understanding of the value of, re-examining closed cases where newly acquired, credible evidence calls into question prior decision making. Recommendations include:

27.     OJP and the IACP should provide guidance, with input from national law enforcement and advocacy groups, to establish and pursue common goals and guiding principles toward identifying and resolving wrongful convictions.

28.     OJP and the IACP should take a leadership role in providing examples, protocols, and/or an assessment tool of how to investigate claims of innocence.

29.     NIJ, BJA, and OVC should partner to enhance research efforts and support victim notification and advocacy efforts where cases are reopened.

30.     Law enforcement should take a leadership role in developing greater openness to re-examination—both on a national level with the IACP and a local level with each executive leading that charge in every investigation.

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IACP: Police Can Take Lead Role in Preventing Wrongful Convictions
Ted Gest, Dec. 3, 2013

Excerpt: “A “culture of openness to new information from reliable sources” is a key to reducing the problem of wrongful convictions in American criminal justice, the International Association of Chiefs of Police said today.

The IACP issued a federally-funded report, announced in conjunction with The Innocence Project, concluding that “law enforcement can take a lead role in preventing and reducing wrongful convictions by eliminating the arrest of the wrong person.” The report includes 30 recommendations for dealing with the problem.
The recommendations are divided into eight categories:

* Eyewitness identifications, including better lineup procedures, more research, and better officer training.

* False confessions, testimony and informants, including a call to record all law enforcement interviews.

* Preventing investigative bias.

* Improving DNA testing procedures.

* Expanding access to the CODIS DNA database and providing more resources to small law enforcement agencies.

* Creating a “culture of critical thinking” in law enforcement to help prevent wrongful arrests.

* Leveraging technology and forensic science, including the evaluation of current protocols and investing in emerging technology.

* Openness to new information in re-examining closed cases.’ “

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Police chiefs lead effort to prevent wrongful convictions by altering investigative practices
Spencer S. Hsu, Washington Post, Dec. 2, 2013

Excerpt: “The nation’s police chiefs will call Tuesday for changes in the way they conduct investigations as a way to prevent wrongful convictions, including modifying eye­witness identification.
“What we are trying to say in this report is, it’s worth it for all of us, particularly law enforcement, to continue to evaluate, slow down, and get the right person” (Walter A. McNeil, the police chief in Quincy, Fla., and past president of the chiefs association.)

This is precisely what CAP has been saying for almost a decade. We are working on this again in 2014. To date the police and the prosecutors have been dead set against any eyewitness id reform despite the overwhelming research in this area showing that almost 75% of wrongful convictions are due to false eyewitness identifications. Will the movement by the International Assn. of Chiefs of Police move Hawai`i in the right direction?  WE NEED YOUR HELP IN 2014 ON THE BILL!

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Beyond Good Cop/Bad Cop: A Look At Real-Life Interrogations
NPR, Dec. 5, 2013

“We see a lot of police interrogation on TV, but how closely do those high-adrenaline scenes resemble the real thing? According to Douglas Starr, not much. In his new New Yorker article, “The Interview: Do Police Interrogation Techniques Produce False Confessions?”, Starr examines the Reid technique, the style of interrogation most widely used by police forces in the U.S.

Created in the 1940s by former Chicago policeman John Reid, the method “is really considered the gold standard of interview and interrogation techniques,” Starr tells Fresh Air’s Terry Gross. With Reid’s “near monopoly” on interrogation training, Starr says, hundreds of thousands of law enforcement officials have been trained on the technique since the ’70s.

As part of his research, Starr took a training course in the Reid technique. “It has the appearance of being very scientific,” he says. But a growing number of scientists and legal scholars say this approach is based on outdated science and psychology — and can sometimes produce false confessions.

“There doesn’t seem to be a national conversation [about interrogator tactics] of any sort,” Starr says, “and that’s unfortunate because for every innocent person that’s put away, the person who really committed the crime is still on the streets.”

This is why we need to pay attention to science.  Prosecutors put a lot of weight on confessions and not so much on science. We need to reform the criminal justice system to protect the innocent.

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The upsides of recording custodial police interrogations
Grits for Breakfast Blog, Nov. 29, 2013

Excerpt: “Regular readers know that requiring police to record custodial interrogations, especially in the most serious cases, is the final recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Legislature has yet to implement.
Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions. He listed, for example:

•lying to suspects about the evidence against them;

•the length of interrogations;

•the propensity of people to comply with authority;

•mental illness or low intelligence;

•and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Not only does recording interrogations help prevent false convictions (or at least identify them after the fact), it also provides better evidence for prosecutors and juries, prevents he-said she-said disputes about what went on in interrogation rooms, serves as a buffer against police misconduct, and prevents false accusations against police interrogators. “I think that police officers and prosecutors, properly trained, could do this and do it well,” said a prosecutor quoted in the story. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

One hopes the Texas Legislature will prioritize this issue when it re-convenes for its 84th session in 2015.”

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National exoneration registry tracks wrongfully convicted inmates
Casey Smith, Tulsa World, Dec. 2, 2013

Excerpt” ”

During the past quarter century, 23 Oklahomans have been exonerated of crimes that together had already cost them about 200 years in prison.

Nationwide, courts have determined that 1,250 people who together had already spent roughly 12,000 years in prison were wrongfully convicted.

It’s likely that only a small portion of wrongfully convicted inmates have been set free, and gathering details on cases where the accused were eventually exonerated can help reform the justice system, experts say. …”

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Pretty cool, yeah?  Our truths are now being recognized! Yay!! We still have a long way to go for real justice, but the feds are making strides that we hope Hawai`i will embrace.  Mahalo for your commitment to justice. Please support our efforts in 2014 when many of these issues will come before our Legislature.  Let’s pray that sanity rules!


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